Is it the beginning of the end of “anti-critical race theory” legislation?
Starting in 2021, state lawmakers introduced a wave of such proposals, many modeled off a 2020 executive order signed by then-President Trump forbidding federal employees from receiving training on a number of “divisive concepts,” including the idea that any race was inherently superior to another, or that individuals should bear guilt for things that happened in the past. Some of these bills explicitly name-checked critical race theory—an academic framework for analyzing structural racism in law and policy.
Education Week recently updated its ongoing tracker of these laws, and concluded the pace of newly introduced legislation has slowed. The organization has counted just 10 bills that would affect K-12 education so far in 2024, of which two have passed.
Analysts from the National Conference of State Legislatures who track trends in state-level proposals said their data generally matched EdWeek’s, and that momentum on this topic seems to have flagged.
But, they noted, other issues around what schools can teach or discuss have replaced the interest in “divisive concepts” and critical race theory, including “parents’ rights” bills allowing parents to withdraw their children from lessons they object to; bills that specifically take aim at gender identity or students’ use of pronouns; and bills that aim to restrict library materials and other curriculum content. (EdWeek’s bill tracker does not look at those topics.)
Some analysts see the slowdown on critical race theory legislation as a sign of fatigue with this element of the ongoing battle over who should shape curriculum.
“There’s only 50 states and only a subset that are sort of safe Republican ones where politicians can vote for these without worrying about being held politically accountable, so it can’t keep going forever,” noted Jeffrey Henig, a professor of political science and education at Teachers College, Columbia University. “You can only signal-call so long, so it’s not that surprising that once people have done their pass and proven themselves to the true believers in their largely solid, gerrymandered, state-legislated districts, things would run out of steam in some way.”
It’s also possible, he said, that the wave of headlines about book restrictions and attacks on librarians have brought some of these issues home locally in ways that have made some constituents uncomfortable.
Here are three things to know about where states stand on these anti-critical race theory laws.
1. Action seems concentrated in a handful of states
So far, no state that had not already considered such a proposal in prior years has seen a lawmaker introduce one in the 2024 legislative cycle. Overall, 44 states have considered legislation or regulations to curb how issues of race and gender can be taught since 2021, and 18 of them have enacted policy.
Most of the 2024 legislation has been introduced in states where previous proposals have failed to pass. Missouri lawmakers, for example, have introduced four bills this year that would variously prohibit the teaching of certain “divisive concepts” related to gender and race, prohibit the teaching of The New York Times’ 1619 Project—an exploration of slavery’s role in shaping American policy—and prohibit teachers from requiring students to create projects that compel students to lobby or engage in activism on specific policies or social issues, among other things. The state had some 20 bills on these same topics in 2023, none of which passed.
Two new laws have passed so far in 2024, in Alabama and Utah—expanding restrictions those states already had on the books (see No. 3, below).
2. Already-passed laws are here to stay—for now
The 2024 session also brought an early test of these laws’ durability.
In New Hampshire, Democrats attempted to strike statutory language added as part of a 2021 budget law that forbids teachers from teaching about gender and race in specific ways. But on March 14, lawmakers voted 192-183, largely along party lines, to indefinitely postpone the bill, effectively killing it.
Attempts to undo the laws could come through the courts. Lawsuits from various combinations of parents, teachers, students, teachers’ unions, and civil rights organizations have been filed in at least six states—Arizona, Arkansas, Florida, Oklahoma, New Hampshire, and Tennessee. The lawsuits generally allege that the laws are impermissibly vague and violate students’ and teachers’ rights to free speech or due process.
The latest lawsuit, filed just this week by two students and their teacher in Little Rock, Ark., takes aim at that state’s executive order and legislation that forbid “teaching that would indoctrinate students with ideologies,” including critical race theory. State officials had cited those rules when determining that the newly developed AP African American Studies course would not count for credit.
3. A few new laws suggest a pivot toward targeting DEI programs
Two newer laws signed this year suggest that diversity, equity, and inclusion, or DEI, programs could be the latest target.
These anti-DEI laws gained traction after the U.S. Supreme Court’s ruling last year that bans affirmative action in college admissions, and appear to be aimed mainly at higher education institutions. But several would also prohibit DEI efforts in K-12 schools and districts.
Alabama Gov. Kay Ivey signed a law that prohibits public universities and schools from sponsoring any diversity, equity, and inclusion program or maintaining a DEI office, or from requiring students or faculty to attend training or affirm the “divisive concepts” the state already had forbidden from teaching.
Similarly, Utah Gov. Spencer Cox in January signed a law aimed mainly at public colleges and universities but also covers other state institutions, including public schools. It prohibits districts from training staff or students on “discriminatory practices,” including any that rely on personal identity characteristics as a marker of moral character, promote resentment, or assert that an individual is inherently privileged or oppressed, among other things. And it prohibits districts from establishing an office, division, or employee who coordinates activities related to those practices.
Here, too, Henig sees the possibility of overreach.
“People’s attitudes about Harvard and Columbia and Penn as these elite, distanced institutions are different if it starts playing out at Michigan State and your local community college,” he said. “I think there’s some of that same friction when it comes closer to home.”
